Tải bản đầy đủ - 83 (trang)
Determination of dumping Anti-dumping law

Determination of dumping Anti-dumping law

Tải bản đầy đủ - 83trang

authorities to examine whether the continued imposition of the duty is necessary, whether the injury would be likely to continue or recur if the duty
were removed or varied, or both. The review shall be carried out providing that a reasonable period of time has elapsed since the imposition of the anti-
dumping duty.

1.2.2. EUs anti-dumping law


As early as the foundation of the European Community, its regulations on dumping and anti-dumping were formed. They are targeted at dumped
imports which cause significant injury to Community producers. If left unchallenged, dumping gives the third country exporter an unfair competitive
advantage which could be exploited with considerable negative consequences for the Community industry. These regulations were set up on the basis of the
Treaty establishing the European Community, the Regulations adopted pursuant to Article 235 of the Treaty applicable to goods manufactures from
agricultural products, proposals from different parties in the Council, opinions of the European Parliament, especially the Anti-dumping Agreement of the
WTO. The anti-dumping regulations of the European Union have been amended several times to be in accordance with international regulations and
custom. Existing Community rules were replaced by a new Anti-Dumping regulation which came into force on 1 January 1995. This in turn was updated
by Regulation 38496, which came into force on 6 March 1996. The regulation is then amended in 1998, 2000, and 2002.

1.2.2.1. Determination of dumping


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The European Commission is responsible for investigating complaints and assessing whether they are justified.
Principle 2, Article 1 of the EUs anti-dumping defines: A product is to be considered as being dumped if its exports to the Community is less than a
comparable price for the like product, in the ordinary course of trade, as established for the exporting country
Export price
Basically, the EU legislation prescribes two methods of calculating export price as mentioned in the WTOs regulations. The export price shall be
the price actually paid or payable for the product when sold for export from the exporting country to the Community. in cases where there is no export
price or where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the
importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent
buyer, or, if the products are not resold to an independent buyer, or are not resold in the condition in which they were imported, on any reasonable basis.
In these cases, adjustment for all costs, including duties and taxes, incurred between importation and resale, and for profits accruing, shall be
made so as to establish a reliable export price, at the Community frontier level.
Normal value
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In general, the EUs rules of this matter follow the basic requirements of the WTO, and they are concerned in more detailed. sales of the like product
intended for domestic consumption shall normally be used to determine normal value if such sales volume constitutes 5 or more of the sales volume
of the product under consideration to the Community, and it is sold in the ordinary course of trade. When there are no or insufficient sales of the like
product in the ordinary course of trade, the normal value is calculated on the basis of export price of the like product to a third country or on the
constructed value of the product. A noticeable point in calculating on the basis of the constructed based on the cost of production in the country of origin plus
a reasonable amount for selling, general and administrative costs and for profits. If related costs are not reflected in the records kept by producers,
exporters, they will be adjusted or specified on the basis of costs of other producers, exporters in the same exporting country.
In the case of imports from non-market economy countries, normal value shall be determined on the basis of the price or constructed value in a market
economy third country, or the price from such a third country to other countries; or where those are not possible, it shall be on the basis of the price
actually paid or payable in the Community for the like product after being adjusted to include a reasonable profit margin.
1.2.2.2. Investigating authorities and investigation procedure
Investigating authorities
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According to EU Regulations, the European Commission, Ministerial Council, Member States and Court of law have the right to conduct the
investigation to impose anti-dumping measures.
 European Commission
The EC plays the most important role in enforcing anti-dumping law of the EU. It is responsible for receiving complaint, initiating an investigation,
carrying out the investigation, imposing the provisional anti-dumping measures, accepting price undertakings from foreign exporters and petitioning
for applying official anti-dumping tariff. The EC can also suggest Ministerial Council to approve the amendment of anti-dumping regulation and
promulgate new law on commerce. Within the Commission, the General Department of Trade is in charge of enforcing anti-dumping law. It includes
about 100 offices specializing in investigating dumping cases and other trade compensation measures.
 Ministerial Council
The Ministerial Council has competence to approve the imposition of official anti-dumping tariff petitioned by the Commission. It has the right to
pass the promulgation or amendment of commercial law submitted by the Commission.
 Member States
Member States engage in carrying out anti-dumping law through Advisory Committee or the so-called the Anti-dumping Committee,
consisting of representatives of each member, with an officer of the
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Commission as chairman. The consultation of Advisory Committee is referred to by the Commission in every law enforcement procedure. If there is one
member opposes to the Commissions decision, it will become ineffective. Member States are responsible for collecting anti-dumping tax through their
own customs offices.
 Court
Decision on imposing anti-dumping measures made by the Committee or the Commission will be appraised by the Court. It will examine whether the
decision making process of the authorities follows the correct procedure. In fact, EUs Court has handled an anti-dumping petition since 1998, but there is
still no result, which shows the limitation of the appraisement of EUs Court in anti-dumping mechanism.
Investigation procedure
 The complaint may be submitted to the Commission by the Community industry. The Community industry often communicates unofficially with
officers of the Commission to determine whether there is sufficient evidence to justify the initiation of an investigation. The complainant frequently lodges
a draft complaint to the Commission for reference.
 The Community industry
In reality, the association represents the Community industry submitting the application. The complaint shall be considered to have been made by or on
behalf of the Community industry if it is supported by those Community producers whose collective output constitutes more than 50 of the total
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production of the like product produced by that portion of the Community industry expressing either support for or opposition to the complaint.
However, no investigation shall be initiated when Community producers expressly supporting the complaint account for less than 25 of total
production of the like product produced by the Community industry. In order to determine whether the complaint can be seen as being on behalf of the
Community industry, the Commission normally send questionnaires to all producers concerning about their production and opinions of the complaint.
 Examining the complaint
A complaint shall contain the following information:
- Identity of the complainant and a description of the volume and value of the Community production of the like product by the complainant. Where a
complaint is made on behalf of the Community industry the complaint shall list all known Community producers of the like product, and a description of
the volume and value of Community production of the like product accounted for by such producers.
- A description of the allegedly dumped product, the names of the country or countries of origin, the identity of exporters or foreign producers
and a list of importers.
- Proves of dumping activities.
- Information on injury caused by alleged dumped imports on the Community industry.
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After receiving the complaint, the Commission is responsible for examining the accuracy and adequacy of the evidence provided to determine
whether there is sufficient evidence to justify the initiation of an investigation. Within 45 days of the date on which the complaint is lodged, the Commission
has to make decision and publish a notice on the Official Journal. An investigation shall be carried out within a year, and 15 months is maximum.
 Questionnaire
As soon as announcing the initiation of an investigation, the Commission shall send questionnaires to all interested parties including the complainant,
importers, exporters and their representative associations, consumer organizations. The time limit for exporters shall be counted from the date of
receipt of the questionnaire; they have 30 days to reply. If the questionnaire is not answered fully and precisely, the Commission shall make decision base on
data provided by the complainant.
 Information approachability
All interested parties may inspect all information which is not confidential, made available by any party to an investigation.
 Inspection
After receiving the answers, the Commission shall appoint its officers to inspect head offices of importers and producers in the EU, and then inspect the
offices of exporters in exporting country in order to define whether the data provided is in accordance with normal accounting procedure. The inspection
ensures the accuracy of the information in the questionnaire.
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 The Advisory Committee does not have the right to make decision but it may inform the Commission of the supporters and opposers among Member
States. Through the Advisory Committee, Member States may put political pressure on the Commission.
 Preliminary decision
Preliminary decision shall be summarized in written form and sent to Member States. The decision shall be discussed at the Advisory Committee.
Provisional duties shall be imposed in case the Commission defines that there is dumping and consequent injury to the Community industry.

1.3. Comparison between WTO and EU anti-dumping laws


Making comparison between the export price and the normal value in the EUs law is the same as the WTOs. It must be fair, specific, shall be made at
the same level of trade and in respect of sales made at as nearly as possible the same time and with due account taken of other differences which affect price
comparability. The EU lists in detail those factors for which adjustment can be made: physical characteristics, import charges and indirect taxes, discounts,
rebates and quantities, level of trade, transport, insurance, handling, loading, and ancillary costs, packing, credit, after-sales costs, commissions, currency
conversions.
After calculating dumping margin, the next step is to define whether dumped imports have cause, or threaten to cause damage to the Community
industry or material retardation of the establishment of such an industry. Level of damage will be evaluated by indicators such as profits, productivity, and
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